Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting:

New draft Rule 134 ter

Presence through the use of video technology

1.      An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.

2.      The Trial Chamber shall rule on the matter on a case-by-case basis.

Commentary: This is a new element to the RPE since the applicable rules do not address the use of video conference technology (VCT), which was not foreseen when the Rome Statute was drafted.  The draft rule 134ter spells out the view strongly expressed that the participation of the accused in trial through VCT equals presence. The Trial Chamber should be given the necessary liberty to decide on its use on a case-by-case basis. In its initial comment, the Court expressed doubts whether the use of VCT can be qualified as presence.

This is the “trial by Skype” proposal, and it has one clear advantage over the “trial by counsel” proposal: instead of ignoring the physical presence requirement in Art. 63(1), it redefines physical presence to include virtual presence. Call it “constructive presence.” That said, I still think the proposal conflicts with Art. 63(1), thus requiring an amendment to the Rome Statute. Indeed, the Chair of the ASP seems to admit as much when she notes that “[t]his is a new element to the RPE since the applicable rules do not address the use of video conference technology (VCT), which was not foreseen when the Rome Statute was drafted.” The idea seems to be either: (1) it would not frustrate the meaning of Art. 63(1) to expand physical presence to include constructive presence, because the drafters of the Rome Statute could not have known about videoconferencing technology when they wrote the provision; or (2) had the the drafters of Art. 63(1) known about videoconferencing technology, they would have explicitly deemed constructive presence to qualify as physical presence.

The problem is that, contrary to the Chair’s comment, videoconferencing was already widely in use by the time the Rome Conference was held in 1998. Indeed, it was already widely in use — even on personal computers — by 1996, when PrepCom began:

The 1990s saw the advancement and development of video conferencing systems due to many factors, including technical advances in Internet Protocol (IP) and also more efficient video compression technologies were developed that would permit desktop or PC-based videoconferencing. In 1991, IBM introduced the first PC-based video conferencing system, named PicTel. Although it was a black and white system that was very inexpensive, costing only $30 per line, per hour, the system itself cost $20,000. Not much later in 1991, DARTnet made video conferencing history by successfully connecting a transcontinental IP network consisting of more than 12 research sites in the U.S. and the U.K. using T1 trunks. DARTnet, now known as the CAIRN system, still exists today and connects dozens of institutions.

It wasn’t long after that VC started infiltrating the masses through free services and software, such as NetMeeting, MSN Messenger, and Yahoo Messenger, to name a few. While the video quality was poor at best, the price was right and slowly it started to be adopted by the consumer market. It was now only a matter of time before video conferencing made its way to corporate desktops around the world.

One of the VC systems that would make history and dramatically impacted the future of commercial video conferencing is CU-SeeMe, which ran on the Apple Macintosh and became available to the public in 1992. Even though it lacked audio, it was by far the best video system developed to date. CU-SeeMe rapidly progressed and by 1993 it had multipoint capability and in 1994 added audio to its list of features. Early on, the limitations of CU-SeeMe for Mac in a mostly PC world were recognized and its developers quickly began working on a Windows-compatible version. In 1994, Windows-based CU-SeeMe was launched and in 1995, CU-SeeMe v0.66b1 complete with audio followed. While CU-SeeMe was popular, its combination of [UDP] broadcasting and peer-to-peer connection methodology limited applications to school rooms and training facilities with all users on the same network (with no intervening firewalls or network address translators).

In parallel with CU-SeeMe, AT&T targeted consumers in 1992 with its $1,500 videophone. It was moderately successful. There were at least two other firsts in 1992, a combined audio and video broadcast took place utilizing the MBone system and in July of the same year INRIA introduced their VC system. This is the first year that real traction was taking place in the video conferencing market and this momentum prompted the quiet development and ratification of compatibility standards by the International Telecommunications Union (ITU).

The drafters of Art. 63(1) could hardly have been unaware, then, that videoconferencing would allow an accused to be virtually present at trial. Yet they did not include constructive presence in Art. 63(1). To me, that dooms the “trial by Skype” proposal.